HARISH KUMAR Vs. STATE OF HARYANA
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Crl.), 1297 of 2011, Judgment Date: Dec 16, 2014
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1297 OF 2011
Harish Kumar ... Appellant
Versus
State of Haryana ... Respondent
J U D G M E N T
PRAFULLA C. PANT, J.
This appeal is directed against judgment and order dated
7.12.2010, passed by the High Court of Punjab and Haryana in Criminal
Appeal No. 310-SB of 2001 whereby the High Court has dismissed the
appeal of the appellant Harish Kumar. He was convicted by the
Additional Sessions Judge, Hisar in Sessions Case No. 1 of 1994 under
Sections 304B and 498A IPC, and sentenced to rigorous imprisonment for
seven years.
2. We have heard learned counsel for the parties at length and perused
the record of the case.
3. Brief facts of the present case are that accused Harish Kumar got
married with Manisha (deceased) on 14.1.1992. The couple was blessed
with a son in the month of November, 1992. They used to live in Hansi
in the district of Hisar, Haryana. On 13.9.1993 at about 10.30 p.m.,
Manisha suffered burn injuries, and she was immediately taken by her
husband Harish Kumar (appellant) to Civil/General Hospital where she
was admitted at 11.00 p.m., i.e., within half an hour of the incident.
PW-1 Dr. M.L. Kalra, Medical Officer of said hospital, who admitted
the patient, recorded following medico legal injuries:
"Superficial burn injuries on anterior part of neck, most part
of trunk, right side of back, both buttock, both thighs,
including knees, right foot, most of left upper limb total area
of burn 50-60%".
In the opinion of the Medical Officer (PW-1), nature of injuries was
dangerous to life, probable duration of injuries within 36 hours. In
the column - History/outdoor - "accidental burn injuries" were
mentioned in the medico legal report (Copy Annexure P-1). The Medical
Officer sent a memo (Ruqa) Ext. PB to Police Station. On next day,
i.e., 14.9.1993, a dying declaration (Copy Annexure P-2) was recorded
by Baru Ram, Naib Tehsildar (DW-2) in the presence of Dr. Surender
Singh (DW-1 ) of the Civil/General Hospital, Hansi.
4. In her dying declaration recorded on 14.9.1993 by the Naib Tehsildar
in the presence of the Medical Officer, the deceased made a statement
of which English translation reads as under: -
"My marriage was performed with Harish about two years back, and
there is a son aged 9 months from the wedlock. There is no quarrel
between us. In the night of 13.9.1993 at about 10.30 p.m., all of a
sudden, there was failure of power. I went to the room as I wanted
to lit the lamp by striking the match stick. I had to take out milk
to feed my child. The match box was not in good condition. I had to
strike match sticks 3-4 times, and one of it fell on my maxi, which I
was wearing at the time. It caught fire from the side of bottom. I
tried to douse it. But it kept on spreading. On this I called my
husband Harish, who put a blanket on me, and also poured 2-3 matkas of
water on me. Then he went out, and on finding a scooter, my husband
took me to hospital. No one has set the fire or ablazed, and it was
accidental." (Emphasis supplied)
At the bottom of the above statement Dr. Surender Singh DW-1 certified
that Manisha Bhatia (deceased) gave the statement in his presence and
he remained present throughout the course of statement, and the
patient was fit to give the statement. From Annexure P-2 it reveals
that it was recorded at 10.45 a.m. on 14.9.1993, and Manisha put her
thumb impression under it. It was also mentioned in Annexure P-2 by
PW-13 Sub Inspector Ami Chand, who was posted at Police Station, City
Hansi, that the police received a memo (Ruqa) from the Medical Officer
of the hospital, but when in the night Constable Patak Singh went
there, the patient was not in a fit condition to make the statement at
that point of time. It is further endorsed by PW-13 that on 14.9.1993
on the instruction of Tehsildar the dying declaration was got recorded
at the hands of Naib Tehsildar (DW-2), after taking the opinion from
the Medical Officer (DW1). It is further mentioned at the end of the
endorsement by PW-13 that it appears that on striking of a match stick
in the night to lit the lamp, it fell and the maxi caught fire. It is
further endorsed that, however, the matter would be investigated, and
action would be taken as per the findings.
5. It further reveals from the record that parents of Manisha were
informed about the incident, and they visited her in the hospital. It
has also come on the record that later Manisha was referred to Rohtak
Medical College for further treatment.
6. On 19.9.1993 (about five days after the incident) Manisha succumbed to
burn injuries (in Rohtak Medical College, Hospital). It appears that
her body was sealed by the police, and sent for post mortem
examination. PW-3 Dr. Nalini Cooner conducted post mortem examination
on the very day (19.9.1993) and opined that cause of death of the
deceased was due to burns and its complications. She further opined
that burns were anti mortem in nature and were sufficient to cause
death in ordinary course of nature. In her report, she further
recorded that probable time that elapsed between death and post mortem
was within 24 hours.
7. It appears that though the parents of the deceased not only visited
their daughter in the hospital, but also came to see her dead body
before the same was cremated, but no information was given to the
police till 23.9.1993. It is only on 23.9.1993 PW-8 Subhash Chand
(father of the deceased) gave First Information Report alleging that
husband of the deceased and her in-laws harassed her for non-
fulfillment for demand of dowry. He alleged that accused Harish Kumar
asked him to buy a house for him but he was not able to fulfill the
demand. It is also alleged in the First Information Report by the
informant that his son-in-law Harish Kumar also made demand of scooter
for which he paid Rs.11,000/- to him, but the accused insisted for
full amount of Rs.20,000/-. He (PW-8) admitted (in the FIR) that he
went to Rohtak Medical College to see his daughter but she was in
unconscious condition. Informant Subhash Chand (PW-8) stated in the
Report that he was told by "KISI" that Manisha told him/her that at
the time her statement was recorded by the Magistrate, she (deceased)
was under threat of Harish, else he would have killed her son.
8. On the above report FIR No. 284 was registered at Police Station, City
Hansi at about 7.50 p.m. on 25.9.1993. After interrogation of the
witnesses, the Investigating Officer, PW-11, Inspector Jai Prakash,
the then Station House Officer of Police Station, City Hansi, arrested
accused Harish Kumar, his younger brother Krishna and his mother
Ishwari Devi. On conclusion of investigation charge sheet appears to
have been filed against all the three accused for their trial in
respect of offences punishable under Sections 498A, 304B and 506 IPC.
The Sessions Judge, on committal of the case, after hearing the
parties, framed charge of offences punishable under Sections 498A and
304B IPC and, in the alternative, charge of offence punishable under
Section 302 IPC read with Section 34 IPC on 2.2.1994 against all the
three accused who pleaded not guilty and claimed to be tried.
9. Prosecution got examined PW-1 Dr. M.L. Kalra (the Medical Officer who
recorded medico legal injuries at the time of admission in the
hospital), PW-2 Shamsher Singh (formal witness), PW-3 Dr. Nalini
Cooner (who conducted post mortem examination), PW-4 Subhash Chand
(alleged landlord), PW-5 Hans Raj (neighbour of the accused and
deceased), PW-6 Raj Rani (aunt of the deceased), PW-7 S.I. Dharampal
(formal witness), PW-8 Subhash Chand (informant and father of the
deceased), PW-9 Veena Bhatia (mother of the deceased), PW-10 Hari
Chand (grandfather of the deceased), PW-11 Inspector Jai Prakash (who
investigated the crime), PW-12 Inspector Ram Dhan (formal witness) and
PW-13 Sub Inspector Ami Chand (who made endorsement in the dying
declaration dated 14.9.1993).
10. Oral and documentary evidence was put to the accused Harish Kumar on
10.2.1999 under Section 313 CrPC in reply to which he alleged that the
evidence adduced against him is false. Other accused also pleaded the
same. In defence DW-1 Dr. Surender Singh, Medical Officer of
Civil/General Hospital before whom dying declaration was recorded, and
DW-2 Baru Ram, Naib Tehsildar, who recorded the dying declaration,
were examined.
11. The trial court, after hearing the parties, found that the prosecution
has sufficiently proved charge of offence punishable under Sections
498A and 304B IPC against all the three accused, namely, Harish Kumar
(husband), Krishna (brother-in-law) and Ishwari Devi (mother-in-law)
and after hearing on sentence each one of them was sentenced to seven
years rigorous imprisonment under Section 304B IPC with the
observation that no separate sentence is required to be awarded under
Section 498A IPC in the light of Smt. Shanti and another v. State of
Haryana[1].
12. Aggrieved by said judgment and order dated 28.2.2001/1.3.2001, passed
in Sessions Case No. 1 of 1994, all the three convicts filed Criminal
Appeal No. 310-SB of 2001. The High Court after hearing the parties,
allowed the appeal of co-accused Ishwari Devi and Krishna, PW 4 has
stated that said two accused were not living with deceased and her
husband. However, the appeal of Harish Kumar (husband) was dismissed.
Hence, this appeal before us by the accused Harish Kumar by way of
Special Leave Petition. The leave was granted by this Court on
4.7.2011.
13. Before further discussion we think it just and proper to mention the
relevant provisions of law applicable to this case. Section 304B IPC
reads as under: -
"304B. Dowry death. - (1) Where the death of a woman is caused
by any burns or bodily injury or occurs otherwise than under
normal circumstances within seven years of her marriage and it
is shown that soon before her death she was subjected to cruelty
or harassment by her husband or any relative of her husband for,
or in connection with, any demand for dowry, such death shall be
called "dowry death", and such husband or relative shall be
deemed to have caused her death.
Explanation - For the purpose of this sub-section "dowry"
shall have the same meaning as in section 2 of the Dowry
Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with
imprisonment for a term which shall not be less than seven years
but which may extend to imprisonment for life."
14. Section 498A IPC reads as under: -
"498A. Husband or relative of husband of a woman subjecting her
to cruelty. - Whoever, being the husband or the relative of the
husband of a woman, subjects such woman to cruelty shall be
punished with imprisonment for a term which may extend to three
years and shall also be liable to fine.
Explanation. - For the purpose of this section, "cruelty"
means -
a) any wilful conduct which is of such a nature as is likely
to drive the woman to commit suicide or to cause grave
injury or danger to life, limb or health (whether mental or
physical) of the woman; or
b) harassment of the woman where such harassment is with a
view to coercing her or any person related to her to meet
any unlawful demand for any property or valuable security
or is on account of failure by her or any person related to
her to meet such demand."
15. Section 113B of the Indian Evidence Act, 1872 provides as under: -
"113B. Presumption as to dowry death. - When the question is
whether a person has committed the dowry death of a woman and it
is shown that soon before her death such woman has been
subjected by such person to cruelty or harassment for, or in
connection with, any demand for dowry, the Court shall presume
that such person had caused the dowry death.
Explanation - For the purpose of this section, "dowry
death" shall have the same meaning as in Section 304B of the
Indian Penal Code (45 of 1860)."
16. From the language of Section 304B IPC read with Section 113B of the
Indian Evidence Act it is clear that once death of a woman is caused
by any burn or bodily injury or occurs otherwise than under normal
circumstances within seven years of her marriage, and if it is shown
that soon before her death she was subjected to cruelty or harassment
by her husband or any relative of her husband in connection with
demand of dowry, such husband or relative shall be deemed to have
caused her death and the court shall presume it. In other words, in
the cases of dowry death, as defined in Section 304B IPC, after
evidence adduced by the prosecution and conditions mentioned in
Section 113B Indian Evidence Act, are fulfilled, court has to take a
presumption, and burden shifts on the accused to rebut the
presumption.
17. As far as cruelty on account of demand of dowry is concerned, there
is sufficient evidence adduced by PW 8 Subhash Chand (father of
deceased) and PW 9 Veena Bhatia (mother of deceased) which is
corroborated by PW 5 Hansraj (neighbour) and PW 10 Harichand (grand
father of the deceased) to establish the charge. As such we are not
inclined to interfere with the conclusions of the trial court and that
of High Court, with regard to the fact that charge under Section 498A
IPC stands proved against accused Harish Kumar. But the finding as to
whether death of deceased was accidental or not, requires careful
scrutiny particularly in view of the fact that deceased has given
dying declaration five days before her death to the public servant in
the presence of medical officer, after police requested Tehsildar for
recording the same.
18. Learned counsel for the appellant submitted that by proving dying
declaration of the deceased, recorded on 14.9.1993 by getting examined
DW-2 Baru Ram, Naib Tehsildar and DW-1 Dr. Surender Singh, Medical
Officer of the hospital, in whose presence the statement was recorded,
the accused has discharged the burden to rebut the presumption which
could be drawn under Section 113B of the Indian Evidence Act. It is
further argued that the courts below have erred in law in ignoring the
dying declaration of the deceased.
19. On the other hand, on behalf of the State it is contended that the
dying declaration dated 14.9.1993 is given by the deceased under
threat from accused Harish Kumar, as such the courts below have
rightly not relied upon it.
20. We have considered the rival submissions of the parties and carefully
scrutinized the record. There are certain facts which cannot be
ignored in this case. Firstly, immediately after the incident at
10.30 p.m. on 13.9.1993, within half an hour the husband took his wife
Manisha to the hospital and got her admitted. It is not disputed fact
that the husband took the deceased to Civil/General Hospital, Hansi
where medico legal examination was recorded by PW-1 Dr. M.L. Kalra at
the time of admitting the patient (Manisha). It is also not disputed
that the parents of the deceased were informed about the incident and
they visited their injured daughter in the hospital, as is apparent
from the statements of PW-8 Subhash Chand (informant and father of the
deceased) and PW-9 Veena Bhatia (mother of the deceased). We have
already discussed above that Manisha died on 19.9.1993, five days
after the incident. It has also come on the record that PW-1 Dr. M.L.
Kalra sent a memo (ruqa) to police, on which, as stated by PW-13 SI
Ami Chand, request was sent to Tehsildar for recording of dying
declaration. PW-13 SI Ami Chand has stated that Tehsildar marked the
request of the police to the Naib Tehsildar on which Naib Tehsildar on
14.9.1993 recorded the dying declaration. It is also relevant to
mention here that DW-1 Dr. Surender Singh, Medical Officer of the
hospital where Manisha was admitted, was present at the time of
recording of dying declaration and he made the endorsement that the
patient was in a fit condition to make it.
21. In the above circumstances, we are of the view that the courts below
have erred in law in not relying the dying declaration recorded by the
Naib Tehsildar in the presence of the Medical Officer, on the request
of the police. Strangely, in the First Information Report informant
and father of the deceased Subhash Chand (PW 8) has attempted to
explain the dying declaration already recorded on 14.9.1993 by
mentioning, "MUJHE PATA CHALA KI MERI LADKI MANISHA NE HARISH KE KAHNE
PAR JO MAGISTRATE KE SAMNE BAYAAN DIYA THA MANISHA DARA DHAMKA RAKHI
THI KI LADKE KO BHI JAAN SE MAAR DEGA. MANISHA NE KISI KO YEH BAAT
KAHI THI KI MERE PITAJI MILEN TO UNKO YEH BAATTEN BATA DENA." ( I
came to know that my daughter who made statement before the Magistrate
was under threat from her husband that her son would be killed.
Manisha told this to "KISI" (someone) whom she requested to convey it
to her father.) The prosecution has attempted to explain the Hindi
word "KISI" (someone) by saying that it was nick name of PW-6 Raj Rani
(aunt of the deceased). The explanation given by the witnesses as to
the nick name of PW-6 Raj Rani, is not convincing as PW-6 Raj Rani is
admittedly a real sister-in-law of the informant, and real aunt of the
deceased. As such there should have been no difficulty for the
informant to mention in the First Information Report that it was the
aunt of the deceased to whom Manisha told to convey the above alleged
fact.
22. PW-1 Dr. M.L. Kalra, Medical Officer of Civil/General Hospital, Hansi,
in his cross-examination, has stated as under: -
"The patient was brought to the hospital by her husband Harish
Bhatia. She was not unconscious when she was brought to the
hospital...."
In the examination-in-chief of this witness it has been stated by him,
- "she gave history of accidental burn injuries". This fact recorded
by PW-1 in the medico legal report (copy Annexure P-1) further
corroborates the dying declaration recorded on the next day (on
14.9.1993) by the Naib Tehsildar. Needless to say that DW-1 Dr.
Surender Singh and DW-2 Baru Ram, Naib Tehsildar, are not interested
witnesses. Rather they are independent public witnesses who have
discharged their duties after the police approached Tehsildar in
response to memorandum (Ruqa) received from PW-1 Dr. M.L. Kalra.
23. Considering the above facts and circumstances, we find that the dying
declaration dated 14.9.1993, made by the deceased, before Naib
Tehsildar in the presence of Medical Officer, is voluntary and
truthful. In Surender Kumar v. State of Punjab[2], this Court has
observed, in para 20, as under: -
"It is also not obligatory that either an Executive Magistrate
or a Judicial Magistrate should be present for recording a dying
declaration. It is enough that there is evidence available to
show that the dying declaration is voluntary and truthful.
There could be occasions when persons from the family of the
accused are present and in such a situation, the victim may be
under some pressure while making a dying declaration. In such a
case, the court has to carefully weigh the evidence and may need
to take into consideration the surrounding facts to arrive at
the correct factual position."
24. In Nallam Veera Stayanandam and others v. Public Prosecutor, High
Court of A.P.[3], in the similar facts and circumstances of the case,
this Court, at the end of para 6, has observed as under: -
"In cases where there is more than one dying declaration, it is
the duty of the court to consider each of them in its correct
perspective and satisfy itself which one of them reflects the
true state of affairs."
25. Therefore, in view of the law laid down by this Court as above, in
the present case we find sufficient evidence that the defence has
discharged its onus to rebut the presumption that could have been
gathered under Section 113B of the Indian Evidence Act, in respect of
offence punishable under Section 304-B I.P.C That being so, following
the principle of law laid down in Nallam Veera Stayanandam and others
v. Public Prosecutor, High Court of A.P. (supra), we uphold the
conviction of the appellant Harish Kumar under Section 498A IPC, and
sentence him to rigorous imprisonment for a period of three years,
which he has already undergone, and set aside the conviction and
sentence recorded against the appellant, in respect of the offence
punishable under Section 304B IPC. The appellant is on bail. He need
not surrender. Accordingly the appeal stands partly allowed.
....................................J.
[Vikramajit Sen]
....................................J.
[Prafulla C. Pant]
New Delhi;
December 16, 2014.
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[1] AIR 1991 SC 1226
[2] (2012) 12 SCC 120
[3] (2004) 10 SCC 769